(concurring).
I concur with the majority opinion. In doing so I am constrained to answer the dissent and point out what I consider its infirmities.
1. It says that since the main opinion follows the statute, consequently the children may choose the father “unless he is completely unfit.” The main opinion said no such thing and didn’t even imply it. The trial court found the father to be completely fit, so that the dissent’s assertion is a complete non sequitur.
2. It says we look at the case in a light most favorable to the trial -court’s finding, and then concludes that its decision in *47giving- the mother custody should he affirmed. The dissent misconstrues its own interpretation of the rule stated, since at least one of the findings of the trial court was that the father was a fit and proper person to have the children’s custody. Looking at the case in a light most favorable to this finding, this court has nothing to do but apply the statue, which clearly gives the child his choice in such case.1 Otherwise, we would simply flout the statute and indulge ourselves the luxury of judicial legislation.
3. The dissent asserts that because the father was a psychiatrist it is likely that he “assumes an air of superiority” tending to overshadow his wife, he being aggressive and domineering. This court on review cannot entertain such an assumption. The father was found to be a fit and proper person, and any aspersion to the contrary by attaching significance to a nine-hour phone conversation with his wife, completely is dispelled by the fact that there are two parties to a telephone conversation, and any significance attached to such a call, if there be any, ordinarily would be attributed to a common complaint leveled against the opposite sex.
4. The dissent implies that to allow this father to have custody is an egregious miscarriage of justice and simply is to arrive at some sort of sociopaternalistic conclusion not shared by the legislature. -The father, I repeat, was found to be a fit and proper person to care for his flesh and blood, and the question looms large: What is wrong with such a father doing so, or having a desire therefor?
5.Considerable stress is laid by .the dissent on the judgment of a 10-year-old. What about the judgment of the 1year-old girl and the other three children ranging in ages between those extremes? At 18 the girl could marry. At 18 a boy goes to war. Under the statutes a 14-year-old boy is held responsible for his criminal acts. The legislature obviously thought that all things being equal, and both parents being fit, one 10 years old, or older, had enough sense and judgment to live with one or the other of his natural parents, according to his choice. It seems safer, so far as the humanities are concerned, to let the elected representatives of the people set the age of discretion in such case, than to leave the decision arbitrarily to one man, a judge, who might personally prefer one over the other of two spouses. I am of the opinion that more than once a 10-year-old has proven himself more capable of determining his best interests in the area of filial feeling *48and domestic relations than has a judge, who, in the last analysis, has not popped corn in the kitchen or helped to trim a Christmas tree with such youngster.
6. The authorities cited in the dissent are not analogous or apropos. Johanson v. Cudahy has to do with a statute where the results would render the statute absurd, and where' time of payment by a third person could he none of the latter’s concern. That case is not this case, where there is nothing absurd about the statute, but which only represents legislation with respect to an age of discretion, the legislature in clear language considering 10 years or more to be reasonable, whereas a socio-economic school of thought may consider it not only unreasonable, but that one man arbitrarily should be able, in his sole discertion, to thwart the will of the electorate. The door is open to this school, and has been since 1888,2 to convince the legislature it was wrong, and to change the statute. Rogers v. Wagstaff is no authority for the dissent’s thesis, as a casual reading thereof will reflect. As to Rowley v. Public Service Commission, this court simply interpreted a statute and determined legislative intent, and is hardly authority for the dissent’s position when it said that “if the intent of the legislature is by the statute made clear and certain, even though we may believe the legislation absurd and undesirable, we cannot substitute the judgment of the court for the judgment of the legislature.” Peay v. Board of Education does not support the dissent, having to do only in determining legislative intent where, according to the context of the act, a typographical error had been made as to the number of a section, which, without reasonable interpretation, made no sense and obviously was a “patent error.” State v. Bassett has no pertinency in favor of the dissent, since in that case the statute was interpreted in connection with another statute in the light of legislative history and case law, — factors not present here where, without change, the statute as to child custody had persisted for three-quarters of a century. Norville v. State Tax Comm. is completely foreign to the dissent’s position, since it deals with an ambiguous statute and proceeds to interpret it, whereas in the instant case no one can find any language that was not “explicit,” the dissent failing to quote the more significant language of that case that “When the words are not explicit the intention is to be collected from the context.” Church of the Holy Trinity v. United States - adds no weight to the dissent’s philosophy or accuracy.
7. After citing cases that are not authority, almost half of the dissent is then *49devoted to the evasion of the real issue here by expounding an unjudicial, albeit social sophistry lacrimatory to the paternalistic, but irresponsive to a dry-eyed legislature elected by the people, and quite unconvincing either to the legislature or those in the 10 to 18-year-old class, who may consider that their judgment with respect to a relationship with their parents is not puerile or infantile. Kids 10 years and older generally have pretty good sense, including a sense of greater devotion to one or the other of their parents. If their parents do not have sense enough to bring these kids to full fruition because of factured domestic relations why give one judge the awful power to force five kids to live with one of the recalcitrants against their expressed wishes, where the two homebreakers nonetheless are found to be equally fit to raise their children according to the latter’s choice of parents.
The dissent talks about children becoming pawns on the occasion of a divorce. They always are and invariably suffer more than the parents who brought them here without any choice on the offsprings’ parts. Perhaps the legislature was not so unwise after all in letting the kids reverse the situation, have a genuine choice as to their future, make pawns, for a change, out of their parents and say that although there be a plague on both your houses, I want to live in the one in which I want to live. (Emphasis mine.)
. All five children, one of whom was a girl 17% years old, chose the father with whom to live.
. Compiled Laws of Utah 1888, Sec. 2606.